ANTICIPATORY BREACH UNDER THEUNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

Mercédeh Azeredo Da Silveira
2019
Intricate issues of contract law stem from a rather plain question: is one party, suspecting that the other party will not fulfill his obligations in compliance with the terms of the contract, entitled, prior to the date agreed upon for performance, to suspend his own performance and demand additional guarantees, or even to avoid the contract? International uniform law envisages a number of situations in which a breach is said to have occurred prior to the time agreed upon for performance. In
more » ... e area of international sales contracts, arts. 71, 72, and 73(2) of the United Nations Convention on Contracts for the International Sale of Goods (hereafter " CISG" ), applicable to both the buyer and the seller, lay down, on the one hand, the situations in which an anticipatory breach is deemed to have occurred and, on the other hand, the remedies available to the aggrieved party. In other words, these provisions designate the circumstances in which, even though no breach of contract has yet been committed and the time for performance of the obligation has not yet elapsed, a party may, in order to protect his own interests, temporarily stop complying with his contractual obligations or completely free himself from those obligations. In this respect, arts. 71, 72, and 73(2) CISG differ from arts. 49 and 64 CISG, which govern the right of the aggrieved party to avoid the contract when performance is overdue, that is when the other party has actually committed a fundamental breach of contract. Art. 71 and art. 72 CISG differ in their purpose, their conditions of application, and the solutions that they provide. Art. 72 CISG is based on the AngloAmerican doctrine of anticipatory breach and authorizes the innocent party to declare the contract avoided, without the need to wait until the breach materializes on the date when performance is due, if it is clear that the other party will commit a fundamental breach of contract. Art. 71 CISG, on the other hand, merely authorizes the innocent party to suspend performance if it becom [...]
doi:10.5278/ojs.njcl.v0i2.3046 fatcat:yj7szfuur5gavfavc2m5r6h5y4